I really don’t care much one way or the other about the Senate using the “nuclear option” and changing the rules to allow a simple majority of the Senate to confirm (or not) the nomination of a person to become a federal district judge or a judge of a court of appeals. If I had a position, I suppose it would be this: We already have a House of Representatives, and we all know how well that body works! But, I digress.

With the rule change, we are now confronted with a new reality in the confirmation process. I have a selfish interest. With Judge Joe Bataillon, a most able colleague, taking senior status in less than one year, President Obama will get to nominate his successor. There are plenty of really good candidates and it is not my job to weigh in about who is selected. But, I do have a legitimate interest in seeing to it that my next colleague is not a bozo. And this brings me to Andrew Cohen’s fascinating essay in the Atlantic on November 21, 2013, entitled “The Filibuster’s Demise Is Great News for Judicial Confirmation Hearings.”

Cohen’s essential point is that the party-opposite now has a strong incentive to really probe the competence of judicial nominees during the Judiciary Committee hearings. That is, if the opposition party has any sense, members of that party who sit on the Judiciary Committee will probe and put forth substantive criticisms of judicial nominees because the record of those proceedings will provide the last, best chance to convince loyalists that their President’s choice was the wrong one. It also means that the President needs to be certain that his or her nominees have the qualifications that will be necessary to survive intense grilling. He writes:

By the time you read this, a million words will have been read or spoken about what the new limits on the filibuster mean to Washington politics and to the American people. You will have heard all the screeds and justifications from the politicians and the advocates and the lawyers and the lobbyists. Let me just briefly add this note: The coming era means that Senate Judiciary Committee hearings for federal judges now will be consistently more intense, partisan, and revelatory than they have ever been before.

This, folks, is rockin’ good news.

. . .

Knowing they can no longer hold up nominees for no good reason on the Senate floor, Judiciary Committee Republicans instead will be forced to seek substantive ways to justify a decision to vote “no” on Obama nominees. They will ask tougher questions of the nominees and require those nominees to provide more candid and complete answers. They will complain if and when candidates fail to do so. Republicans, in other words, will seek to elicit information about these candidates during hearings that can be used against those candidates when their nominations come up for a vote. And when Democrats become the minority again in the Senate they, too, will employ these tactics.

This is not remotely a bad thing. Judicial nominees should be evaluated more in public on the merits of their work and the arcs of their careers. They should have to reveal more about their judicial ideologies, to the extent they have any. As now-Supreme Court Justice Elena Kagan famously said in 2010 during her love-in with the Judiciary Committee, judicial nominations have become “vapid and hollow” affairs in which the senators (of both parties) prattle on with prepared speeches while the candidates try to offer as little insight as possible about their judicial philosophies.

. . .

So the next judicial appointees to come before the Judiciary Committee are far more likely to face far more hostile questions than their immediate predecessors did. They had better be ready—for their own sake and for the sake of the administration that nominates them. In a perfect world, this would mean that the president, and future presidents, would work harder to nominate only the most qualified candidates and that the confirmation hearings become more substantive affairs.

More candor aimed at the American people? More insight into life-tenured judges? Political battles over the merits of people’s careers rather than over the size of our courts? If that’s the end result here, there is reason to applaud today’s historic change, no matter what side of the aisle you call home.

I do not generally agree with Mr. Cohen, but, on this matter, I hope against hope that he is right. Experience, competence, judgment, temperament and especially work ethic should be thoroughly and substantively (but fairly) probed during Senate Judiciary Committee hearings when a person has been nominated to become a federal district judge. If that happens, going “nuclear” was OK and the next federal district judge from Nebraska won’t be a bozo.

RGK

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38 responses

It is going to speed up the process. It won’t change the political nature of the appointments. A few people who didn’t survive the exaggeration of their past records will now make it past confirmation.

This is a recognition that elections in fact mean something. Article II of the Constitution gives the president the power to appoint federal judges. When those appointments come available is a crapshoot.
Does anyone think that if the Chief Justice had died during Obama’s term rather than Bush’s term that Justice Alito would be on the Supreme Court Yes, presidents are going to appoint federal judges who generally share the president’s philosophy of the law. That’s only been happening since the Washington Administration.
On the other hand, it is ridiculous to have three seats on the DC Circuit remaining vacant because a minority of the Senate does not want Obana to, in their words, “pack the court.” Obama did not create those vacancies but he was elected. He should be able to fill them.
The same thing is true for agencies. It is crazy to have a situation where a minority of the Senate blocks confirmation of NLRB nominees so the agency board will not have a quorum and be unable to operate. And, I don’t think the founding fathers expected a minority of the Senate to be able to block any nominee for the Consumer Credit agency job because they don’t like the agency.
This is an example of what goes around comes around. Someday, there will ne a Republican president and a Democratic minority on the Senate. Even without the filubuster rules, they could tie the Senate in knots simply by objecting to very unanimous consent motion, like unanimous consent to skip reading of yesterday’s Senate journal.
Of course the Senate should keep nuts and Bozos off the federal bench and out of high-ranking jobs in the administration. That’s their job. But qualified, honest nominees should be confirmed swiftly.
Tom

I don’t see this argument being very persuasive. Senators do not need an intellectual justification for voting against the other party’s nominees, they can just do it for baldly partisan reasons. There are no electoral repercussions for a Democrat from NY voting against a G.W. Bush nominee, nor a Republican from NE voting against an Obama nominee. If anything, a Senator may face greater consequence for voting FOR an opposite party nominee than against. For example many Democrats, including then-Senator Obama, voted against John Roberts on purely ideological grounds, even though he was astoundingly well qualified.

The incentive a Senator has, both before and after the rule change, is to embarrass the President for bringing an incompetent nominee. That will get you the same effect (pointed committee questions, and lots of White House vetting before nominees get put forth), but it’s not because of the filibuster change.

The change is good in as much as it had become standard practice to filibuster every single nominee of the President simply because they were nominees of an opposite party President. The change will likely result, however, in nominees who hold more steadfastly liberal or conservative views. For example, Obama would feel no compunction to avoid nominating an avowedly pro-choice judicial nominee, since while that position would be considered scandalous by the GOP, it is that stated policy platform of President Obama and a majority of US Senators. If anything it probably helps him, since the GOP Senators would shout themselves hoarse about abortion without spending as much time probing other issues where the party divide is less clear and immovable.

Rich, it will change the dynamics a lot, but the major premise of his argument is that if one party holds both the White House and the Senate at the same time (currently of course the Democrats, but it won’t be that way forever) behaves responsibly. Let’s call this the “Controlling Party” and the other one the “Opposition Party.” Of course, we could just call them the Democrats and the Republicans, but that tends to make people think of it political terms. It was only maybe eight years ago or so that the shoe was on the other foot with the filibustered nomination of Estrada to the D.C. Circuit and the like.

The Controlling Party will now have vastly more freedom in the way that it operates. It might, for instance, decide to adhere strictly to “party discipline” and ignore any objection lodged by the Opposition Party. That would be bad. One hopes that the Controlling Party has enough independent-minded Senators who would take seriously fair-minded criticisms raised by members of the Opposition Party, but currently I don’t see much objective basis for that hope.

In any event, the Controlling Party is going to have a lot more leeway. The question is how they will use it. In the best case the Controlling Party would use it to appoint thoughtful and well-qualified candidates that it couldn’t have gotten through before, because the candidate might have made the grievous mistake of actually writing or saying something interesting in his or her past. That would be good news for law professors with a yen to become federal judges.

The other is the Controlling Party could use federal judicial appointments simply as a reward system for engaging in political activities that benefit the Controlling Party. As there is no shortage of politically active lawyers (I realize, of course, that federal judges don’t even have to be lawyers, though I presume no Controlling Party would have the chutzpah to nominate non-lawyers), the Controlling Party will have a fairly strong incentive to use the carrot of a judicial appointment to cause lawyers to contribute more money, volunteer on campaigns, etc. However, the success of such a strategy will be directly proportional to the number of lawyers who perceive themselves as having a chance under such a system.

Realistically, I think the percentage of lawyers who would make good federal judges is in the single digits. Many never have engaged in much or any of the practice of law, others may practice but their practices are limited to transactional matters, some are (frankly) perfectly fine as lawyers but not bright enough to be successful as federal judges, etc. However, for the Controlling Party to succeed in broadening that group of “realistically hopeful” lawyers from, say, in the single digits to well into the double digits it can only do that by making at least a few appointments of lawyers who never had a chance before because of lack of relevant experience, aptitude or temperament.

This second strategy will only work if there’s a high level of party discipline. So if we unpack Cohen’s argument that this is “rockin’ good news” it depends on the assumption that the Controlling Party can’t impose enough discipline in the Senate to cause its members of the Senate to gulp and confirm judicial nominees even over the justified howls their colleagues on the other side of the aisle.

There’s also no going back now. When the Controlling Party and the Opposition Party switch places, I would place at precisely zero the chances that new Controlling Party would hand over to the new Opposition Power the power of being able to block confirmation votes with 40 votes. Indeed, if the Controlling Party’s strategy of using judicial appointments as a party-building mechanism is successful, it will be incented to dig deeper into the barrel for nominees to give an even larger number of lawyers realistic hope of being appointed.

Of course if we get the perfectly realistic scenario of neither party being the Controlling Party (because one holds the Senate and the other holds the White House) it seems like that the party that was the Opposition Party before will — having watched marginal or worse judicial candidates get confirmed — will simply cross its arms and refuse to move judicial appointments through saying essentially to the White House “you’ve done enough damage already, we aren’t filling any seats until we get the White House too.”

A lot will depend on how the first Controlling Party (the Democrats obviously) behave. If they behave relatively responsibly we may have what amounts to the Prisoners Dilemma in which the one with the first move “cooperates” instead of “defects,” which could cause the next Controlling party to cooperate.

So maybe this is “rockin’ good news” but you can color me some mixture of worried and skeptical. Best, Pat.

ALL LITIGANTS ARE EQUAL BEFORE THE LAW
BUT SOME LITIGANTS ARE MORE EQUAL THAN OTHERS

It merely underscores the point I have been making here: We no longer HAVE a judiciary in this Third World toilet of a nation.. It has been replaced by an army of intellectual zombies, whose only apparent purpose is to promulgate their patrons’ ideology. We still have a few stray throwbacks, but they are (quite literally) a dying breed.

How can you even practice “law” in a jurisdiction where there is no binding precedent? The Bill of Rights has become “The Bill of Polite Suggestions,” and our ZombieJudges™ are no longer even discomfited by the spectacle of judges sitting in judgment of their own cases.

When a man shows up at the courthouse without a lawyer, the doors are slammed in his face … unless that man is Chief Judge Alex Kozinski of the Ninth Circuit. Now, the rookie judge is between a rock and a hard place?!? As the old American Express ad goes, “being a member has its privileges…

Judge Gertner’s confession that she was literally trained to commit felonies, and that judges were exercising veto power over legislation they did not approve of–what Kozinski accurately described as “constitutionalizing their personal preferences”–demonstrates just how far beyond the pale of the law our judges have strayed. As the legislature doesn’t work, and our judges ignore them in any event, perhaps we should just shut down the legislature to save money. King George is now “King Judge.”

When Alex Kozinski was growing up in Romania, he dreamed of the day when he would have the rights we as Americans enjoyed. Now, Romania is a member of the European Union and as such, unlike Americans, Romanians are protected by a functional system of law. And now, I sit in bed at night, dreaming of the day–one that, frankly, I may never live to see–when I would have the same rights that Romanians enjoy.

As Scalia pointed out, if it wasn’t for the fact that we no longer HAVE the rule of law in this country, this would not have been an issue. Everyone knows that today’s judges are–with very few exceptions–politicians in black robes, there to rubber-stamp their patrons’ preferences. If judges were the mere machines Thomas Jefferson envisioned, neither Party would give a frig as to who was on the bench.

I didn’t need to see who was on the CA-5 panel overturning the stay in the Texas abortion restrictions case. And I will wager that I am not alone.

This is one of the few times that I have acted like a “glass half-full” guy. That admitted, the locus of any “debate” is likely to shift to the Judiciary Committee and in that sense I think Cohen may be on to something. Anyway, it will be interesting to see if Committee hearings become more intense and more substantive. If that is so, there is a “silver lining” to the “nuke option,” albeit a tarnished one.

I think you miss something. If I am a Republican on the Judiciary Committee, I have an incentive to make a non-partisan point about why a nominee should not be confirmed. That is, for example, showing that a nominee to a federal district judgeship has a truly poor worth ethic or no experience trying jury cases. The incentive is to make a point that may cause even the President’s party members to swallow hard. But, I agree that this is a pretty thin reed.

Anyway, it will be interesting to see if Committee hearings become more intense and more substantive.

Based on what logic? What we have now is the Controlling Party, to borrow Professor Borchers’ term, on the Committee listening politely (or not) and then going on about its way voting the President’s nominee out of committee as though the Opposition Party had not spoken at all, whereupon the Controlling Party then will listen politely (or not) to the “debate” on the floor, and then go on about its way confirming the President’s nominee as though the Opposition Party had not spoken at all.

With the Majority Party in the Senate from a different party than the President, the same dynamic obtains, with the single difference that the Majority Party will merrily vote the President’s nominee out of committee (here, I disagree with some of the other commenters) so that nominee can be voted down by the Senate as a whole.

There simply is no incentive to do anything else. With the filibuster, there was at least a small incentive to try find a way to persuade (six, in the present Senate) Senators to vote for cloture.

The whole advise and consent process has become strictly pro forma. Mr Cohen is naive; there’ll be nothing revelatory in the hearings, anymore; there will only be scandalous accusation–which one party already has been more prone to do than the other.

As an aside, it’s interesting to note that of the two parties who have seriously considered destroying the filibuster in recent times, only one actually took that step.

Now way to know how many judges who answered the questions honestly at their interviews were appointed. Having an honest discussion of their ideologies that leads to approval by the President and the Senate might produce a less cynical bench. Up to now, the process is a farce to the extent that candidates refuse to answer questions on how they would decide certain issues. I will follow the law and precedent. Bullshit. Follow except when they don’t want to follow. “Precedent requires ….” “The facts here are unique ….”

Your point is very important. The process before the “nuke” strike did breed cynicism on the part of the nominee because the nominee knew that the best answer was always no more than three letter long–“yes” or “no.” Never explain and never apologize. If the Judiciary Committee hearings become more substantive, nominees might just walk away believing “that they heard me out.” That would be a good thing.

The odds certainly favor your position if only because old habits die hard. But, if I were a member of the party-opposite I would now want to focus on the substantive for a very practical and ultimately partisan reason–sometimes, substance matters even to your opponents.

There’s a fairly important point about this particular filibuster that keeps getting overlooked. The Republicans weren’t objecting to specific nominees; they were saying the president shouldn’t be appointing any judges at all, at least not to the DC Circuit. Whatever the merits of the filibuster in general, that was a tactic that simply could not be permitted to succeed.

Judge, Sorry, i meant to communicate that it was good news because there would be more judges, but also that scoring a federal clerkship is still a fantasy for most of us. Perhaps that is informed by the horror stories that circulate this time of year about judges who have selected their clerks two years in advance (surely apocryphal, but fear is a potent witness!).

While I agree with you that both parties are full of hypocrites, my point is that there is an outer limit beyond which even the worst hypocrite should not be permitted to get away with, and I think “no judges at all, at least for the DC Circuit” crosses that line. If I was unclear and left the impression that I think the Democrats are less odious than the Republicans, then my apologies and I shall try to write more clearly in the future. But as odious as both may be, I think preventing a president from appointing any judges at all crosses a line that to this point hadn’t been crossed, and needed to be stopped in its tracks.

It worked when Judge Bork was nominated. Competent people of either party should be on the bench. That’s why we nominate them. If the person is a bozo (e.g., Janice Rogers-Brown) or a crook, then the minority party can build a coalition to vote them down. It’s how a republican system works

I know Republicans appoint Republicans to be judges and Democrats appoint Democrats. But in the UK, appointments are made on competence.
A friend of mine from the UK was appointed the equivalent of a federal district judge by the last Labor government. Howard is a conservative with an extra big C. Yet, the Labor government had no problem putting him on the bench.
Wouldn’t happen here. But, by and large, British judges are pretty darn good.

There oughta be a law–that is, the President must nominate one judge from the other party for every judge of his or her own party the President nominates and the Senate must confirm one judge from the other party for every judge that is confirmed from group associated with the majority party in the Senate.

Truly, and with so few exceptions that it hardly makes a difference, my experience is this: At the district judge level (at least), past political affiliation means very little to the outcome of decisions. The Federalist Society and American Constitutional Society geeks think differently, but if they didn’t have the purity of their tribal beliefs what would they talk about when consuming wine and cheese.

“the Majority Party will merrily vote the President’s nominee out of committee […] so that nominee can be voted down by the Senate as a whole.” I should point out that while this sounds reasonable from a distance, it is pretty unlikely.

First of all, the vast majority of nominees end up moving through in non-controversial fashion. Neither Republicans or Democrats are so incredibly brazen as to vote down the vast majority of the other party’s nominees (88% of GWB’s Article III nominees were confirmed; to date 76% of O’s Article III nominees have been confirmed). Both sides recognize that this would threaten the viability of the judicial branch and be an abdication of their constitutional responsibilities.

Furthermore, the whole judicial nominations process is designed in a way to get the buy-in of Senators. Very often Senators set up commissions to review potential candidates and then recommend them to the White House. The White House then usually chooses from among those recommended by the Senators. Much of this process is opaque, so it’s hard to know too much of what negotiations take place. But, under current rules, which require nominees to have the active consent of both Senators, a political negotiation is pretty much a prerequisite before and during the judicial nomination process. (See, for example, the case of Georgia: http://bit.ly/1cLK1tX.)

If one party were to follow this strategy, the politics of the whole judicial nominations process would be thrown into jeopardy. When a vacancy in a rogue Senator’s state arises, why would the White House spend the time/energy/effort to negotiate with someone who has no interest in cooperating to staff the judiciary? And so, instead of getting credit for recommending a good judge, they get blamed for playing politics with the third branch of government.

Besides, this would be a pretty ridiculous use of floor time for the vast majority of nominees. Humiliating a handful of judicial nominees on the floor of the Senate may serve some political purpose, but certainly there are diminishing returns when you’re considering ~200 nominees/term.

Respectfully, Judge, I advise you to weigh in with your Senators if you’re concerned about “bozos” on the bench. They have a significant say in the process and may be open to hearing your concerns. In fact, you don’t have to look far to find evidence of this. Right or wrong, your neighboring home-state Senators’ objections killed the appellate nomination of Stephen Six (KS).

Per my above comment, you will find that in states where the opposing party holds one or both seats, these kinds of negotiations frequently take place. In Illinois, for example, you’ll find Sen. Kirk gets to recommend one out of every three nominees–presumably supporting candidates that are either more neutral or partisan depending on the circumstance. The Georgia Senators seem to have negotiated a deal wherein they can recommend four district court nominees and an appellate nominee in exchange for an appellate nominee of the President’s preference. Of course, neither side gets carte blanche on these matters, but compromise and negotiations are a real and important part of the process. And, given the structure of the Senate and the nature of filling the judiciary, this is likely to be preserved for the foreseeable future.

The whole judicial nominations process is designed in a way to get the buy-in of Senators.

That was before the destruction of the filibuster (which one party considered very seriously, but in the realization, had the integrity to walk away from). Now there’s no need of any buy-in.

The White House then usually chooses from among those recommended by the Senators.

With a Controlling Party, this now is N/A. With an Opposition Party, the White House has no incentive to consider the Senate’s recommendations.

[U]nder current rules, which require nominees to have the active consent of both Senators….

What rule would this be?

If one party were to follow this strategy, the politics of the whole judicial nominations process would be thrown into jeopardy. When a vacancy in a rogue Senator’s state arises, why would the White House spend the time/energy/effort to negotiate with someone who has no interest in cooperating to staff the judiciary?

Welcome to the world of no filibuster.

Humiliating a handful of judicial nominees on the floor of the Senate may serve some political purpose….

Indeed, this would be a waste. However, that’s not the purpose. The purpose is to do politics with the President’s nominations, not with his nominees.

Respectfully, Judge, I advise you to weigh in with your Senators if you’re concerned about “bozos” on the bench.

Here we agree. In a closely divided Senate, the half-dozen, or so, honest Senators might be enough to tip the balance.

I think the main thing to understand here is the blue slip policy. Senate Judiciary Committee Chairman Pat Leahy now requires both home-state Senators to return to the Committee what’s known as a “blue slip,” which effectively demonstrates consent on the nomination. (I believe this has been referred to as a rule, but it’s probably better understood as a policy.)

The blue slip process empowers each and every Senator to have more of a direct say in the judicial nominations process. Leahy’s been very adamant about the blue slip policy up to this point and even publicly rebuffed Senate Majority Leader Harry Reid’s pleas and protestations (over the nomination of Magistrate Judge Elissa Cadish, whom Reid had recommended, but was denied a blue slip by Nevada Senator Dean Heller over concern for her views on gun rights). Leahy has said he’s open to reviewing the blue slip policy if it begins being abused, but there’s not many signs he wants to change it.

Of course, a future Judiciary Chairman could revert to a one-blue slip policy or even abolish blue slips altogether. Previous chairman had only required one blue slip and sometimes hadn’t required any. This is not altogether inevitable, but I think in the long run, it’s become more probable.

The majority will generally have an interest in some level of cooperation with the minority because they benefit when judicial and executive nominees are considered in expedited fashion. Even without the filibuster, an obstinate minority can deny unanimous consent to consider nominees, and require the majority to file cloture. This eats up time on the floor and limits the majority’s ability to do much else.

In January, the Reid-McConnell compromise shrunk post-cloture debate time for federal district court nominees to 2 hours for this Congress. But, it’ll go back to 30 hours in the next Congress (2015).

Again, I would just reiterate that a Senate majority interested in humiliating the President by bringing many/most/all judicial nominations to the floor only to vote them down would be wasting a lot of time and effort to make this a nasty process. Given the more limited impact federal trial court judges are seen to have in the larger political war over judicial philosophy, this would be quixotic, harmful, and yield little political upside.

After all, judges are more than just pawns in a political chess game. Constituents rely on them to deliver justice. Republicans, Democrats, Independents, non-partisans and everyone in between has an interest in a speedy resolution of their legal disputes. Obstinacy out of spite will not insulate individual Senators from home-state criticism for failing to fulfill their Constitutional obligations to staff the judiciary.

To be clear, it’s not 30 hours out of a two-year session. It’s on the order of 3,000 hours (30x ~100 judicial nominees) every two years for judges alone. Doesn’t even count the thousands of hours a similar strategy toward executive nominations would have. Spending that much time to vote down nominees just isn’t a politically useful way for either party to operate.

I stand corrected on the point. Still, it’s not like the Senators are unable to do anything else in those 30 hours per judge.

Nor is it like the Senators must act alone. Each has an extensive staff–Corker, for instance, has a staff of 38, not counting interns (if any) or volunteers; Coons has 43 on his staff. The other Senators would seem to be similarly staffed.

My argument is not that this time concern should be the cause of public sympathy. My point is that a political party seeking to advance a legislative agenda or generate public support among its base or the broader public would be ill-served by wasting so much time focusing on an issue that, for all its merits, is rarely at the forefront of voters’ minds when they go to the polls.